The Portland daily press., 1887-11-24
SUPERIOR COURT.

BEFOhE JUDGE BONNF1.
WFpNFsDAY-W william +. Quincy VS.. Aexan-
der Stuart, and dwelling house in rear OF 639
Congress street.
Assumpsit to recover a balance of S94.20 due
for brick which entered into the construction Of
the dwelling house owned by Mrs. Annie t. Da-
Wis and upon which lien is claimed The defend
amt stuart, has been defaulted, but Mrs. Davis
defends against the lien upon the building, and
claims in the first place that the last bricks were
delivered more than thirty days prior to the time
the plaintiff filed his claim with the city clerk ;
second, that the writ is not in proper form, and
that the attachment is void because the officer is
commanded TO attach the dwelling house only,
and not the land upon which IL is located Decls-
ion reserved
George Libby, for pltff.
Enoch Knight for Mrs. Davis.
Joseph l.. Whitmore VS.. II. w. Woodman and
Thomas +, Foss. This is an action to recover
balance of s1460, claimed to be due for lumber
furnished the defendants under contract. The
defence is that a part of the lumber was not ac-
cording TO the contract quality.
The case was referred last term to Weston
Thompson, O. A. McFadden and Albert j. Robin
son. who made report, the concluding portion OF
which is as follows:
Upon the whole, we find that the pialntih IS
entitled to recover judgment for $1448.44, as
debt or damage, with interest thereon from the
date of the writ, unless the court shall find that
the law requires different Judgment on account
Of the facts hereinafter stated. When the lum-
Der named In the declaration came from the mill,
Tin New Hampshire) the agent OF the mill owner
marked the same with black lead These mill
marks were the only ones ever placed on any OF
the lumber by any person. They were regarded
and relied on when the lumber was loaded on the
cars. No certificate by any official surveyor of
the lumber In question was ever delivered to the
defendants or shown to the referees, and there
was no evidence that such certificate ever exist
ed. Defendants objected to
the want of such official survey marking, brand
ing and certificates the statute requires, and
claimed that for want of them the action is not
maintainable. Plaintiff convinced us that among
the lumber dealers of Portland and vicinity II has
never been customary TO comply with the stat
utes relied on by the defendants, except far as
the facts above stated amount to compliance; and
except as above stated, plaintiff had nothing to
overcome the last mentioned objections Of the de-
PENDANTS. Upon these findings and statements we
return the case TO the court for such judgment as
may be legally suitable; the prevailing party TO
recover costs according to law
be accepted, and judgment ordered for the plain
tiff for $1448.44 and interest. The defendants
renew their OBJ ectons 10 the maintenance of the
action because the lumber was not surveyed as
required by sec. 81, chap. Al of Revised Statutes
and claim that upon the report of the referees
judgment should be ordered for the defendants.
The contract for the lumber was made in Port
land; as matter of fact the plaintiff ordered it
from New Hampshire where it was sawed, loaded
upon cars and shipped directly to the defendants
at Cumberland Mills. The counsel for the plain
till claims that this lumber was never 'offered for
sale" within this State and therefore is not with
in the prohibition of the statute. Decision re-
served.
II. b. Cleaves, for pltff. W.T. Lunt, for dts.